Collateral Consequences of Criminal Conviction (U.S.) - Efforts To Include Collateral Consequences in Sentencing

Efforts To Include Collateral Consequences in Sentencing

If a defendant is punished beyond the sentence prescribed by law (that is, if collateral consequences do occur), the punishment is then more severe than that intended or warranted. In the worst case, this might violate constitutional protections such as the right to work.

Any convicted person would expect social stigma and disapproval, lessened desirability by employers, decreased trust by the community and other consequences for the commission of criminal conduct. Further, many collateral consequences of criminal charges are the result of private behavior and conduct by private individuals and organizations, and thus not necessarily appropriate for government control. In addition, in many instances those who engage in criminal conduct can easily foresee and predict likely collateral consequences. For instance, a bookkeeper who embezzles should expect that other businesses tend to distrust a convicted embezzler to manage their money.

The Supreme Court of the United States addressed collateral consequences of criminal convictions as early as 1984. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court explored ineffective assistance of counsel with respect to collateral consequences of criminal convictions. In evaluating competence, the Court explained, judges should look at all relevant circumstances and evidence of appropriate measures of professional behavior, such as the ABA Standards for Criminal Justice ("ABA Standards"). The ABA Standards require defense lawyers to consider collateral consequences of conviction. Judges, accordingly, should monitor the performance of counsel. States chose to apply this rule in varying ways.

Strickland encouraged but did not mandate consideration of collateral consequences. Some claim that structural incentives exist for lawyers to not elicit information relevant to collateral consequences because doing so may prolong a case; others note that no attorney or judge could predict any and all collateral consequences of a criminal conviction. Since Strickland did not require an analysis of collateral consequences, they generally are not regarded as cause to overturn criminal convictions. However, some argue that the Constitution should require consideration of collateral consequences.

Most states do not accord much legal effect to the collateral consequences of criminal convictions. For example, in New York the consideration of collateral consequences is merely discretionary, while the elucidation of direct consequences is required. For instance, in People v. Ford , 86 N.Y.2d 397 (N.Y. 1995). New York's highest court held that a defendant's guilty plea would not be overturned on learning that the defendant was not advised at the time of the plea that his conviction could result in his deportation. However, “e now hold that counsel must inform her client whether his plea carries a risk of deportation.” PADILLA v. KENTUCKY 559 U. S. ____ (2010). The U.S. Supreme Court held that the collateral consequence of deportation was a consequence of such great importance that failure by counsel to advise the defendant of deportation is ineffective assistance of counsel which is a constitutional protection under the Sixth Amendment. This advice about deportation is now the law of the land and required in all fifty states.

Likewise, the Kentucky Supreme Court in Commonwealth v. Fuartado, 170 S.W.3d 384 (Ky. 2005) held that the failure of defense counsel to advise a defendant of potential deportation did not give rise to a claim of ineffective assistance of counsel.

In May 2005, Chief Judge Judith S. Kaye of the New York State Court of Appeals, organized the Partners in Justice Colloquium to address this issue. Judge Kaye formed a working group which, in partnership with the Lawyering in the Digital Age Clinic at the Columbia University Law School, created a site that, for the first time, collects academic works, court opinions, and professionals' resources (by virtue of a message board and database) in one place. The Columbia University Law School in collaboration with the Columbia Center for New Media Teaching and Learning CCNMTL developed and recently released a calculator for looking up and comparing collateral consequences of criminal charges in New York State.

In Federal law, the federal sentencing guidelines have a model for collateral consequences which is determined by the date of when the offense was committed and by the type of the offense.